State v. Fisher , 2023 Ohio 1131 ( 2023 )

[Cite as State v. Fisher, 2023-Ohio-1131.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. CT2022-0024
CHASE FISHER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2021-
0601
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 3, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RONALD WELCH APRIL F. CAMPBELL
Prosecuting Attorney Campbell Law, LLC
Muskingum County, Ohio 545 Metro Place South – Suite #100
Dublin, Ohio 43-17
JOHN CONNOR DEVER
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0024 2
Hoffman, J.
{¶1} Defendant-appellant Chase Fisher appeals the judgment entered by the
Muskingum County Common Pleas Court convicting him following his pleas of guilty to
one count of illegal use of a minor in nudity-oriented material or performance (R.C.
2907.323(A)(1)) and one count of disseminating matter harmful to juveniles (R.C.
2907.31(A)(1)), and sentencing him to an aggregate prison term of four to six years
incarceration. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant was employed as a sports broadcaster by a local news station,
WHIZ. Through his employment, he interacted with female high school students while
covering sporting events. Appellant began interacting with the female victim in this case
on social media when she was fifteen years old. Appellant eventually asked the victim to
be his “sugar baby.” Tr. (plea) 14. The victim began to send Appellant nude photographs
of herself showing her vagina, breasts, and buttocks. Appellant sent the victim a
photograph of his penis. Appellant sent ten payments to the victim through Venmo,
totaling $431.70. Appellant discussed the victim’s mental health issues with her, and
when she tried to cut off communication with Appellant, he told the victim he was going
to kill himself.
{¶3} Appellant was indicted by the Muskingum County Grand Jury with two
counts of illegal use of a minor in nudity-oriented material and two counts of disseminating
matter harmful to juveniles. Appellant entered guilty pleas to one count of illegal use of a
minor in nudity-oriented material and one count of disseminating matter harmful to
juveniles, and the State entered a nolle prosequi of the remaining two charges. The trial
court convicted Appellant following his pleas of guilty, and sentenced Appellant to four to
Muskingum County, Case No. CT2022-0024 3
six years incarceration for illegal use of a minor in nudity-oriented material and to twelve
months incarceration for disseminating matter harmful to juveniles, to be served
concurrently for an aggregate term of four to six years incarceration. It is from the March
23, 2022 judgment of the trial court Appellant prosecutes his appeal, assigning as error:
I. FISHER’S SENTENCES SHOULD BE REVERSED BECAUSE
TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO
OBJECT TO FISHER’S INDETERMINATE SENTENCES AS
UNCONSTITUTIONAL.
II. FISHER’S SENTENCE SHOULD BE REVERSED, BECAUSE IT
WAS GROSSLY DISPROPORTIONATE TO ANOTHER SIMILARLY
SITUATED OFFENDER, AND BECAUSE THE TRIAL COURT FAILED TO
CONSIDER HIS REHABILITATION.
III. FISHER’S SENTENCE UNDER THE REAGAN TOKES ACT IS
UNCONSTITUTIONAL. THUS, HIS SENTENCE FOR THE SECOND-
DEGREE FELONY OFFENSE SHOULD BE REVERSED.
I.
{¶4} In his first assignment of error, Appellant argues his trial counsel was
ineffective for failing to object to the constitutionality of the Reagan Tokes Act, under
which he was sentenced.
{¶5} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
Muskingum County, Case No. CT2022-0024 4
ineffective assistance of counsel, Appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). In other words, Appellant must show counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied upon as having
produced a just result. Id.{¶6} Because this Court has previously found the Reagan Tokes Act is
constitutional, Appellant has not demonstrated a reasonable probability of a change in
the outcome had counsel raised the issue in the trial court. See, e.g., State v.
Householder, 5th Dist. Muskingum No. CT2021-0026, 2022-Ohio-1542, 2022 WL
1439978.
{¶7} The first assignment of error is overruled.
II.
{¶8} In his second assignment of error, Appellant argues his sentence was
grossly disproportionate to another similarly situated offender in violation of R.C.
2929.11(B), and the trial court failed to consider the concept of rehabilitation in imposing
sentence in violation of R.C. 2929.11(A).
{¶9} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Roberts, 5th Dist. Licking No. 2020 CA 0030, 2020-Ohio-6722, ¶13,
citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for sentencing where we clearly and convincingly find either the record does
Muskingum County, Case No. CT2022-0024 5
not support the sentencing court's findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(l), or the sentence is otherwise contrary to law. Id.,citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659.
{¶10} When sentencing a defendant, the trial court must consider the purposes
and principles of felony sentencing set forth in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12. State v. Hodges, 8th Dist. Cuyahoga No. 99511, 2013-
Ohio-5025, ¶ 7.
{¶11} “The overriding purposes of felony sentencing are to protect the public from
future crime by the offender and others, to punish the offender, and to promote the
effective rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). To achieve these purposes, the
sentencing court shall consider the need for incapacitating the offender, deterring the
offender and others from future crime, rehabilitating the offender, and making restitution
to the victim of the offense, the public, or both. Id. Further, the sentence imposed shall be
“commensurate with and not demeaning to the seriousness of the offender's conduct and
its impact on the victim, and consistent with sentences imposed for similar crimes by
similar offenders.” R.C. 2929.11(B).
{¶12} Nothing in R.C. 2953.08(G)(2) permits this Court to independently weigh
the evidence in the record and substitute our own judgment for that of the trial court to
determine a sentence which best reflects compliance with R.C. 2929.11 and R.C.
2929.12. State v. Jones, 1163 Ohio St.3d 242, 69 N.E.3d 649, 2020-Ohio-6729, ¶ 42.
Instead, we may only determine if the sentence is contrary to law.
Muskingum County, Case No. CT2022-0024 6
{¶13} A sentence is not clearly and convincingly contrary to law where the trial
court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed
in R.C. 2929.12, properly imposes post release control, and sentences the defendant
within the permissible statutory range.” State v. Pettorini, 5th Dist. Licking No. 2020 CA
00057, 2021-Ohio-1512, 2021 WL 1714216, ¶¶ 14-16 quoting State v. Dinka, 12th Dist.
Warren Nos. CA2019-03-022 & CA2019-03-026, 2019-Ohio-4209, ¶ 36.
{¶14} Appellant argues he was a first-time offender who was seeking counseling
on his own prior to sentencing, and the trial court did not consider the need for
rehabilitating him in imposing the sentence in the instant case. The trial court stated in
the sentencing entry it had considered the principles and purposes of sentencing pursuant
to R.C. 2929.11. Appellant does not dispute the sentence was within the statutory range
and post release control was properly imposed. Pursuant to Jones, supra, we may not
independently weigh the record and substitute our own judgment for that of the trial court
to determine a sentence which best reflects the purpose of rehabilitation.
{¶15} Appellant also argues his sentence is grossly disproportionate to a two-year
sentence imposed in a case in which a female teacher engaged in a sexual relationship
with a 17-year-old male student. R.C. 2929.11(B) provides the sentence shall be
consistent with sentences imposed for similar crimes on similar offenders. We find
Appellant’s comparison to the case involving the teacher is not a comparison to a similar
crime on a similar offender, as the offenses involved are not the same, and are
criminalized in different ways by the legislature, with different applicable sentences. The
record does not demonstrate any of the specific facts underlying the teacher’s case other
than the age of the victim, and does not reflect the identity of the exact crime of which she
Muskingum County, Case No. CT2022-0024 7
was convicted. Appellant argued to the trial court he believed a teacher having sexual
relations with a student was a “worse offense” than receiving nude pictures from a minor;
however, he did not demonstrate the offenses were legally similar.
{¶16} The second assignment of error is overruled.
III.
{¶17} In his third assignment of error, Appellant argues the Reagan Tokes Act,
under which he was sentenced, is unconstitutional. For the reasons stated in this Court's
opinion in Householder, supra, we find the Reagan Tokes Act is constitutional.
{¶18} The third assignment of error is overruled. The judgment of the Muskingum
County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur